Gilbert v. Cleveland , 2013 Ohio 5252 ( 2013 )

[Cite as Gilbert v. Cleveland, 2013-Ohio-5252.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99708
BONNIE GILBERT, ADMIN., ETC., ET AL.
PLAINTIFFS-APPELLEES
vs.
CITY OF CLEVELAND, ET AL.
DEFENDANTS
[Appeal By Defendant, John Cotner]
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-774595
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: November 27, 2013
ATTORNEYS FOR APPELLANT
Ernest L. Wilkerson, Jr.
Kathryn M. Miley
Jamie L. Snow
Wilkerson & Associates Co., L.P.A.
1422 Euclid Avenue, Suite 248
Cleveland, Ohio 44115
ATTORNEYS FOR APPELLEES
Stephen J. Charms
Charms and Giusto, L.L.C.
1892 Dunellon Drive
Lyndhurst, Ohio 44124
Michael J. O’Shea
Lipson O’Shea Legal Group
Beachcliff Market Square
19300 Detroit Road, Suite 202
Rocky River, Ohio 44116
For The City of Cleveland
Barbara A. Langhenry
Law Director
City of Cleveland
BY: Gary S. Singletary
Assistant Law Director
Cleveland City Hall, Room 106
601 Lakeside Avenue
Cleveland, Ohio 44114-1077
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant John Cotner (“Cotner”) appeals the denial of his motion
for summary judgment. We find no merit to the appeal and affirm.
{¶2} Plaintiff-appellee, Bonnie Gilbert (“Bonnie”), on behalf of her minor
children, herself, and the estate of George Gilbert (“Gilbert”), filed a complaint against
Cotner and the city of Cleveland (“Cleveland” or “the city”) for damages arising from a
fatal car accident. Gilbert’s car, which had been traveling southbound, stalled in the left
lane of Interstate 71 shortly before the accident. Cotner was also traveling southbound
behind an SUV in the left lane of Interstate 71, north of Gilbert. After his car stalled,
Gilbert began pushing his car from the left lane, across traffic to the right berm of the
highway. When the SUV approached Gilbert, it swerved to avoid hitting him, and
Gilbert suddenly became visible to Cotner, who was still behind the SUV. Cotner also
swerved but was unable to avoid the collision. Cotner’s vehicle struck Gilbert’s car,
knocked him to the ground, and caused injuries to the lower half of his body. Months
later, while in a skilled care nursing home, Gilbert expired. It is undisputed that Cotner
was within the course and scope of his employment as a Cleveland police officer when
his police cruiser collided with Gilbert’s car.
{¶3} Several Cleveland police officers responded to the scene, including
Patrolman Scott Ford (“Ford”) of the department’s accident investigations unit. Ford
authored a crash report, and Cotner prepared a motor vehicle accident report. Cotner
supplemented his report with a more detailed narrative the day after the accident. Cotner
never mentioned in any of these reports that he was pacing the SUV to determine whether
it was speeding.
{¶4} The Cleveland police department conducted an investigation to determine
who and/or what caused the accident. A five-member panel reviewed the crash reports
and Cotner’s statement. All five members of the panel unanimously testified at their
respective depositions that they were unaware Cotner claimed he was pacing the SUV
before the accident.
{¶5} In his motion for summary judgment, Cotner argued he was immune from
liability under R.C. Chapter 2744 because he was within the course and scope of his
employment as a Cleveland police officer at the time of the accident. He also argued
there was no evidence that he acted willfully, wantonly, or recklessly that would strip his
immunity. In response, Bonnie argued Cotner is not entitled to the immunity provided in
R.C. 2744.02 because there is no evidence that he was on an “emergency call” as defined
in R.C. 2744.01(A) at the time of the accident. The trial court agreed and denied
Cotner’s motion for summary judgment. This appeal followed.
Standard of Review
{¶6} We review an appeal from summary judgment de novo. Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). The party moving for
summary judgment bears the burden of demonstrating the absence of a genuine issue of
material fact as to the essential element of the case with evidence of the type listed in
Civ.R. 56(C). Dresher v. Burt, 75 Ohio St.3d 280, 292, 662 N.E.2d 264 (1996). Once
the moving party demonstrates entitlement to summary judgment, the burden shifts to the
non-moving party to produce evidence related to any issue on which the party bears the
burden of production at trial. Civ.R. 56(E). Summary judgment is appropriate when,
after construing the evidence in a light most favorable to the party against whom the
motion is made, reasonable minds can only reach a conclusion that is adverse to the
non-moving party. Zivich v. Mentor Soccer Club, 82 Ohio St.3d 367, 369-370, 696
N.E.2d 201 (1998).
Governmental Immunity
{¶7} Cotner argues the trial court erred in denying his motion for summary
judgment when there is no genuine issue of material fact disputing his entitlement to
sovereign immunity.
{¶8} R.C. Chapter 2744 sets forth a three-tiered analysis for determining whether
governmental immunity applies to a political subdivision. Greene Cty. Agricultural Soc.
v. Liming, 89 Ohio St.3d 551, 556-557, 733 N.E.2d 1141 (2000). The first tier is the
general rule that a political subdivision is immune from liability incurred in performing
either a governmental function or proprietary function. Id. at 556-557; R.C.
2744.02(A)(1). Second, the court must determine if any of the five exceptions to
immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability.
Cater v. Cleveland, 83 Ohio St.3d 24, 28, 697 N.E.2d 610 (1998). If any of the
exceptions to immunity apply and no defense in that section protects the political
subdivision from liability, then the third tier of the analysis requires the court to determine
whether any of the defenses set forth in R.C. 2744.03 apply, thereby providing the
political subdivision a defense against liability. Colbert v. Cleveland, 99 Ohio St.3d 215,
2003-Ohio-3319, 790 N.E.2d 781, ¶ 9.
{¶9} Cotner contends appellants erroneously assert that the motor vehicle
exception provided in R.C. 2744.02(B)(1) strips Cotner of the cloak of sovereign
immunity. Appellants maintain there is a genuine issue of material fact as to whether
Cotner was on an “emergency call,” which would provide a defense to liability pursuant
to R.C. 2744.02(B)(1)(a). R.C. 2744.02(B)(1), provides that “political subdivisions are
liable for injury, death, or loss to person or property caused by the negligent operation of
any motor vehicle by their employees when the employees are engaged within the scope
of their employment and authority.” (Emphasis added.) Cotner argues that because the
motor vehicle exception expressly reinstates liability on “political subdivisions” but not
“employees of political subdivisions,” the exception does not apply to him. We agree.
{¶10} The immunity analysis is different for individual employees of political
subdivisions. Instead of a three-tiered analysis, R.C. 2744.03(A)(6) states that an
employee of a political subdivision is immune from liability unless the employee’s acts
“were manifestly outside the scope of the employee’s employment or official
responsibilities,” or “were with malicious purpose, in bad faith, or in a wanton or reckless
manner.” Rankin v. Cuyahoga Cty. Dept. of Children & Family Servs., 118 Ohio St.3d
392, 2008-Ohio-2567, 889 N.E.2d 521, ¶ 36, citing Cramer v. Auglaize Acres, 113 Ohio
St.3d 266, 2007-Ohio-1946, 865 N.E.2d 9, ¶ 17. Therefore, the crucial issue in this case
is whether there exists a genuine issue of material fact as to whether Cotner acted
maliciously, wantonly, recklessly, or in bad faith at the time of the accident.
{¶11} The Ohio Supreme Court has defined and distinguished the terms
“wanton” and “reckless” conduct. Anderson v. Massillon, 134 Ohio St.3d 380,
2012-Ohio-5711, 983 N.E.2d 266, ¶ 24, quoting Res. Trucking Co. v. Fairchild, 128 Ohio
St. 519, 531-532, 191 N.E. 745 (1934). In Anderson, the Ohio Supreme Court defined
“wanton misconduct” as conduct that
manifests a disposition to perversity, and it must be under such surrounding
circumstances and existing conditions that the party doing the act or failing
to act must be conscious, from his knowledge of such surrounding
circumstances and existing conditions, that his conduct will in all common
probability result in injury.
Id., quoting Universal Concrete Pipe Co. v. Bassett, 130 Ohio St. 567, 200 N.E. 843(1936).
{¶12} The Anderson court defined “reckless misconduct” as follows:
Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is
unreasonable under the circumstances and is substantially greater than
negligent conduct. Thompson [v. McNeill], 53 Ohio St.3d 102 559 N.E.2d
705, at 104-105; adopting 2 Restatement of the Law 2d, Torts, at 587
(1965); see also Black’s Law Dictionary 1298-1299 (8th Ed.2004)
(explaining that reckless conduct is characterized by a substantial and
unjustifiable risk of harm to others and a conscious disregard of or
indifference to the risk, but the actor does not desire harm).
{¶13} This court has defined “malice” and “bad faith” for purposes of R.C.
2744.03(A)(6) in Pierce v. Woyma, 8th Dist. Cuyahoga No. 97545, 2012-Ohio-3947, ¶
15. In Pierce, we defined malice as “the willful and intentional desire to harm another,
usually seriously, through conduct which is unlawful or unjustified.” Id., quoting Hicks
v. Leffler, 119 Ohio App.3d 424, 428-429, 695 N.E.2d 777 (1997). We defined “bad
faith” as more than bad judgment or negligence. Id., quoting Hicks. Bad faith imports a
“dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty
through some ulterior motive or ill will partaking of the nature of fraud. It also embraces
actual intent to mislead or deceive another.” (Citations omitted.) Cotner argues there is
no evidence that he acted maliciously, wantonly, recklessly, or in bad faith at the time of
the accident. He testified at deposition that he was traveling within the speed limit prior
to observing the SUV. He also stated that he maintained an assured clear distance
behind the SUV but that Gilbert’s stalled vehicle appeared suddenly from behind the SUV
and that it was impossible to avoid the collision.
{¶14} In support of his argument, Cotner also relies on O’Toole v. Denihan, 118
Ohio St.3d 374, 2008-Ohio-2574, 889 N.E.2d 505, ¶ 73, wherein the Ohio Supreme Court
held that “violation of directives or policies does not rise to the level of reckless conduct
unless a plaintiff can establish that the violator acted with a perverse disregard of the
risk.” In other words, Cotner contends that even if he failed to maintain an assured clear
distance, was speeding, or was otherwise in violation of a department policy, these
violations alone are not enough to establish bad faith, malicious, wanton, or reckless
misconduct. He argues he is entitled to summary judgment because there is no evidence
that he “acted with a perverse disregard of the risk.” Id.{¶15} However, whether an actor’s conduct was malicious, wanton, reckless, or in
bad faith is generally a fact question for the jury to decide. Fabrey v. McDonald Village
Police Dept., 70 Ohio St.3d 351, 356, 639 N.E.2d 31 (1994); Taylor v. Cleveland, 8th
Dist. Cuyahoga No. 97597, 2012-Ohio-3369, ¶ 22. In Hunter v. Columbus, 139 Ohio
App.3d 962, 970, 746 N.E.2d 246 (10th Dist.2000) the court explained:
Because the line between willful or reckless misconduct, wanton
misconduct, and ordinary negligence can be a fine one, “the issue of
whether conduct was willful or wanton should be submitted to the jury for
consideration in light of the surrounding circumstances when reasonable
minds might differ as to the import of the evidence.”
Id., quoting Brockman v. Bell, 78 Ohio App.3d 508, 516, 605 N.E.2d 445 (1st Dist.1992).
{¶16} Here, appellees allege Cotner was speeding and failed to maintain an
assured clear distance in violation of R.C. 4511.21. They also allege Cotner violated
R.C. 4511.041, which allows a police officer to speed when responding to an emergency,
only if the officer uses emergency equipment such as lights and sirens. Appellees
submitted an authenticated expert report from an accident reconstructionist, Fredrick
Lickert (“Lickert”), who concluded that Cotner was both speeding and failed to maintain
an assured clear distance. Lickert explained:
Officer Cotner testified that he moved left in behind the SUV to pace the
SUV, and he was maybe 3 car lengths behind the SUV. A Crown Victoria
cruise[r] is almost 18' long, so 3 lengths would be approximately 54'. One
of the first things a driver usually does when he or she spots a cruise[r] is to
hit the breaks [sic], sometimes even when they are not speeding. Traveling
between 60 and 73 miles per hour and reacting to break [sic] lights in front
of his cruiser and using an average perception and reaction time of 1.5
seconds, Officer Cotner’s cruise [sic] would travel between 131’ to 160’
before his cruiser breaks [sic] would begin to decelerate the car. Had the
SUV break [sic] checked Officer Cotner, or slowed rapidly, his cruiser
would have slammed the SUV in the rear end. By his own admissions,
Officer Cotner stated he could not see in front of the SUV. So now he is
tailgaiting and driving blindly behind the SUV. It is the opinion of this
Examiner that for Officer Cotner to properly pace this alleged speeding
SUV, Officer Cotner’s cruiser should have been at a minimum 1.5 seconds,
preferably 2 seconds behind the SUV. * * * It is the Examiner’s opinion
that if Mr. Cotner had been pacing this SUV, and he was pacing the vehicle
blindly while traveling only 3 car lengths or approximately 54 feet behind
the SUV, his conduct and operation of the cruiser was reckless.
{¶17} Viewing Lickert’s report in a light most favorable to appellees, the
non-moving parties, we find questions of fact remain as to whether Cotner was acting
maliciously, wantonly, recklessly or in bad faith at the time of the accident.
{¶18} Accordingly, we overrule the sole assignment of error.
{¶19} Judgment affirmed.
It is ordered that appellees recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the common pleas court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
EILEEN A. GALLAGHER, J., CONCUR